Will or Trust is Not Being Followed – What You Can Do

A frequent inquiry involves the death of a loved one who has a will or trust which is not being followed. Typically this is a parent with children and one of the children takes assets of the estate against the Will’s directive. The interested child can take the matter to court. They will have to open a probate case and file a complaint against the egregious person.

Under Michigan law, MCL 700.1205(1), the court may order a person to appear and be examined upon the matter of a complaint that is filed with the court under oath by a fiduciary, beneficiary, creditor, or another interested person of a decedent’s or ward’s trust or estate alleging any of the following:

(a) The person is suspected of having, or has knowledge that another may have, concealed, embezzled, conveyed away, or disposed of the trustee’s, decedent’s, or ward’s property.(b) The person has possession or knowledge of a deed, conveyance, bond, contract, or other writing that contains evidence of, or tends to disclose, the right, title, interest, or claim of the trustee, decedent, or ward to any of the trust or estate.

(c) The person has possession or knowledge of a decedent’s last will.

(2) If the person ordered under subsection (1) refuses to appear and be examined, or refuses to answer the interrogatories asked of the person that relate to the complaint, the judge may by warrant commit the person to the county jail to remain in custody until that person submits to the order of the court.

(3) If fraud is perpetrated in connection with a proceeding or in a statement filed under this act or if fraud is used to avoid or circumvent the provisions or purposes of this act, a person injured by the fraud may obtain appropriate relief against the perpetrator of the fraud or restitution from a person, other than a bona fide purchaser, that benefited from the fraud, whether innocent or not. An action under this subsection shall be commenced within 2 years after the discovery of the fraud, but an action shall not be brought against a person that is not a perpetrator of the fraud later than 5 years after the time of the fraud’s commission. This section does not affect a remedy relating to fraud perpetrated against a decedent during his or her lifetime that affects the succession of the decedent’s estate.

(4) If a person embezzles or wrongfully converts a decedent’s property before letters of authority are granted, or refuses, without colorable claim of right, to transfer possession of the decedent’s property to the personal representative upon demand, that person is liable in an action brought by the personal representative for the benefit of the estate for double the value of the property embezzled, converted, or withheld.

When the person who is appropriating assets outside of the estate is the trustee or PERSONAL REPRESENTATIVE or other FIDUCIARY, a petition (also called a motion) for an accounting which states the allegations can be filed.

Under MCL 700.1308 Breach of duty; remedies; order for accounting a fiduciary is liable for a loss to an estate that arises from embezzlement by the fiduciary; for a loss through commingling estate money with the fiduciary’s money; for negligence in the handling of an estate; for wanton and willful mishandling of an estate; for loss through self-dealing; for failure to account for an estate; for failure to terminate the estate when it is ready for termination; and for misfeasance, malfeasance, nonfeasance, or other breach of duty.

(2) In response to an interested person’s petition or on its own motion, the court may at any time order a fiduciary of an estate under its jurisdiction to file an accounting. After due hearing on the accounting, the court shall enter an order that agrees with the law and the facts of the case.

MCL 700.1401 Notice; method and time of giving provides for the manner and method of notice to be given on the complaint or petition.

Probate judges and other court personnel tend to rubber stamp matters they feel should be routine. Therefore, the party filing the complaint or petition must be aggressive in seeking answers. General defenses should be met with follow-up requests for specific information and proofs. Subpoenas can be ordered to verify defenses.

Undoubtedly all states have similar statutes. If help is needed finding or understanding them, please inquire!

This article was originally published on February 14, 2012. It has been updated and republished on May 15, 2014.

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